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MIGRATION - Application for review of decision of the Refugee Review Tribunal - internal inconsistencies in findings of the Tribunal - jurisdictional error found - jurisdictional error not an available ground for review - application dismissed - recommendation to Minister for sympathetic consideration.

NAKI v Minister for Immigration [2002] FMCA 185 (28 August 2002)

NAKI v Minister for Immigration [2002] FMCA 185 (28 August 2002)
Last Updated: 5 September 2002


[2002] FMCA 185

MIGRATION - Application for review of decision of the Refugee Review Tribunal - internal inconsistencies in findings of the Tribunal - jurisdictional error found - jurisdictional error not an available ground for review - application dismissed - recommendation to Minister for sympathetic consideration.

Migration Act 1958 (Cth) s.474

Judiciary Act 1903 (Cth) s.39B

W133/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 395

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228

NAAG of 2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 713




File No:

SZ 514 of 2002

Delivered on:

28 August 2002

Delivered at:


Hearing Date:

9 August 2002

Judgment of:

Raphael FM


Solicitors for the Applicant:

Newman & Associates

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Sparke Helmore


(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.00.




SZ 514 of 2002








1. The applicant in this matter is a Fijian-Indian woman who, with her three children, arrived in Australia on 5 January 2001. On 19 January 2001 they lodged an application for protection (class XA) visas under the Migration Act 1958 (Cth). Because the applicant was immigration-cleared she was entitled to be considered against the criteria for sub-class 866 (protection). On 13 February 2001 a delegate of the Minister refused to grant protection visas and the applicant sought review of that decision from the Refugee Review Tribunal. The Tribunal considered the matter and handed down its decision on 15 May 2002.

2. The applicant is a single parent. She separated from her husband in 1996. From 1996 until the time in which she left Fiji (save for a period of some weeks immediately before departure) she managed a small holding of approximately 22 acres leased by a relative of her husband from native Fijians and used to grow sugar cane. Her home and that of her children was on this land. The land itself was approximately 45km from Nadi.

3. The Tribunal made the following general finding and then a number of specific findings of fact, the relevant ones of which are set out below:

* "The Applicant presented as a very pleasant and capable person. There was no obvious exaggeration in the way that she presented her claims. Her claims were consistently argued and were free of inconsistencies. I accept that on all significant matters she was a truthful witness." [CB 57]

* "In the years after the 1987 coup the Applicant and her husband endured low level harassment in the form of demands for money, demands for food, theft, and threats of physical harm from, usually drunk, indigenous Fijians. This became worse for the Applicant after the May 2000 coup in Fiji, partly because of the heightened confidence and arrogance of the indigenous Fijians and partly because the Applicant lived in close proximity to the landowners who knew that she was a woman living alone with small children." [CB 58]

* "The conduct endured by the Applicant was not directed at indigenous Fijian women." [CB 58]

* "The Applicant who had no transport of her own was a least twenty minutes by bus from the nearest police station. Nevertheless, after the May 2000 coup she did make complaints to the police on at least two occasions. The police provided no assistance or protection at all to the Applicant." [CB 58]

* "Prior to the expiration of the lease of the land upon which the Applicant's home was located and in about October of 2000, the Applicant relocated to Nadi." [CB 58]

4. The Tribunal came to a finding that the applicant did not have a well-founded fear of persecution for Convention reasons on two grounds. The first is contained in paragraph 62 [CB 59] of the Tribunal's decision and is in the following form:

"However, I conclude from the totality of the experiences of the Applicant that the most significant reason that demands for money, extortion and theft were direction at the Applicant was because she was the person, as the manager of the nearest sugar cane farm, most likely to have the money which the indigenous Fijians wanted to buy either food or liquor. This conduct while clearly criminal behaviour, and for the Applicant and her children at times terrifying, I cannot be satisfied that it was directed at her because she is Indo Fijian. It happens to be a fact of life in Fiji that Indo Fijians are the people who run most of the businesses. Accordingly, I am not satisfied that the Applicant has suffered persecution in the past for any Convention reason."

5. The second reason was contained in paragraph 64 [CB 59] of the Tribunal's reasons:

"Notwithstanding the claims of the Applicant otherwise, I accept the independent information that internal security has been re-established in Fiji and that the authorities are able to maintain law and order. The independent information before me also indicates that with the elections of September 2001, democracy has been restored to Fiji, that the democratically elected government, which has civilian control of the police and security forces, is committed to stability, peace and tolerance between members of all of Fiji's ethnic communities and that the authorities have established effective state protection. Therefore I am unable to be satisfied that the authorities are unable or unwilling to protect the Applicant from any harm she might encounter."

6. These two paragraphs are summarised in paragraph 66 [CB 60]:

"In summary, I am not satisfied that the applicant has faced Convention related persecution in the past or will face Convention related persecution in the foreseeable future upon her return to Fiji. In any event, I find that the Applicant is able to access effective protection from harm in Fiji. Although doubtful about its effectiveness the Applicant did not advance any reason why she would now be unwilling to avail herself of that protection. It follows that she is not a person who is unable or unwilling, owing to a well-founded fear of Convention persecution, to avail herself of the protection of Fiji. She, therefore, does not satisfy the Convention definition of a refugee and is not in need of Australia's protection."

7. Mr Newman, who appeared on behalf of the applicant, provided the Court with some written submissions. He based his claim for the review of the Tribunal's decision under s.39B of the Judiciary Act 1903 (Cth) on the much quoted dicta of Brennan, Deane, Toohey and McHugh JJ contained in Craig v The State of South Australia (1995) 184 CLR 163 at 179:

"If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

8. It is the applicant's case that the first finding of the Tribunal that the harassment, extortion and theft suffered by the applicant were not related to her ethnicity was internally inconsistent with the finding that the conduct endured by her was not directed at indigenous Fijian women. I accept this submission. Once the Tribunal has come to the view that the type of violence to which the applicant was subjected would not have occurred to an indigenous Fijian woman then it must follow that whatever other motive may have been in the mind of those who caused the violence, that it was caused to her because of her ethnicity. If she had not been a non-Fijian it would not have occurred.

9. This type of internal inconsistency was considered by Lee J in W133/01A v MIMA [2002] FCA 395 at [27]. At [33] his Honour said:

"It follows that by reason of the misunderstanding by the Tribunal of the material before it, the Tribunal failed to address the right question and did not apply the law correctly to that material."

10. I am satisfied that this error of the Tribunal would constitute grounds for review under s.39B of the Judiciary Act.

11. This finding does not conclude the matter. The Tribunal also decided that the applicant no longer had a well-founded fear of persecution because things had changed in Fiji since she had left and if she returned she could live in Nadi and have the benefit of effective protection from harm.

12. This finding was made notwithstanding the acceptance by the Tribunal of the following:

i) The applicant had lost everything in Fiji;

ii) Her livelihood was gone;

iii) She had no close family who could provide her with support;

iv) Her home was gone; and

v) That re-establishing herself in Fiji was made difficult for her and her children.

13. The finding was also made on the basis of the country information much of which was included in the Court Book. The applicant submits that the evidence contained in the Court Book does not allow the Tribunal to come to that conclusion. The country information cited in the decision commences at [CB 49] and includes the following at [CB 50]:

"Ethnically based discrimination remains a serious problem. ...

Other human rights problems include several political and arbitrary or unlawful deprivations of life; occasional police and military abuse of detainees and suspects; informal and formal constraints on the freedom of speech and the press and self-censorship; restrictions on freedom of assembly and movement; violence and discrimination against women; instances of abuse of children; and racial discrimination and violence ...

The harassment of Indo-Fijians and the destruction of their property during 2000 did not continue during the year; however, no action was taken against those who looted and vandalized Indo-Fijian stores." (US Department of State Country Reports on Human Rights Practices (2001) Released by the Bureau of Democracy, Human Rights, and Labour on March 4, 2002).

14. This is the most up to date information. Other information cited in the Court Book includes at [CB 53]:

"Effective control over law, order and security has been re-established by the police and military."

However this report which was dated 12 December 2000 appears to relate directly to the situation post-coup whereas a DFAT cable dated 3 April 2001 at [CB 54] states:

"From a community perspective, while we believe that there is no risk of mistreatment to indigenous Fijians, some Indo-Fijians remain at risk of intimidation and harassment."

15. Another extract dated 2 October 2001 from DFAT at [CB 54] states:

"The present law and order situation in Fiji is stable, although there continue to be reports of isolated cases of minor harassment - mainly in the form of low level theft. ... the risk of significant communal mistreatment of Indo-Fijians remains at the low level previously reported."

16. It seems to me that this evidence which was relied upon by the Tribunal belies a conclusion that "the applicant is able to access effective protection from harm in Fiji". Remembering that the applicant is a sole parent who has suffered direct violence and intimidation in the past, not only in her home outside Nadi but also in Nadi prior to her coming to Australia, she would appear to fall into the category of those persons still remaining particularly at risk, namely Indo-Fijian women.

17. The applicant submits that the Tribunal failed to apply the test which it set itself at page 16/17 of its decision [CB 56/57] that:

"A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A "real chance" is one that it not remote or insubstantial or a far-fetched possibility."

18. The applicant submits that all the evidence put before the Tribunal and utilised by the Tribunal in coming to its conclusions supports a finding in favour of the applicant on that test. A failure to properly apply an appropriate test is a jurisdictional error. As McHugh, Gummow and Hayne JJ said in MIMA v Yusuf (2001) 180 ALR 1 at [82]:

"Jurisdictional error can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."

19. The type of error which I have found in the decision making process of this Tribunal is the type of error which s.474(1) of the Migration Act was intended to validate. The extent of that power was the subject of five appeals decided by the Full Bench of the Federal Court of Australia on 15 August 2002 (NAAV v MIMIA [2002] FCAFC 228). The majority view in that decision is that:

"there are some fundamentals in the way the Act operates, to which s.474(1) has no application ... I agree with von Doussa J that these elements are few in number, and that once they are satisfied the decision-maker's power is greatly expanded by s.474(1)." (per Black CJ at [37]).

20. Although there was some difference between their Honours as to what constituted those fundamentals, it would not appear that in any case the majority would have included amongst them a requirement not to make the errors which I have identified as having been made by this Tribunal. These errors would seem to come within those contemplated by Allsop J in NAAG of 2002 v MIMIA [2002] FCA 713 at [13]:

"The widened authority means that the state, or lack, of satisfaction, however reached, with whatever attendance there may have been to what, absent s.474, may have been irrelevant considerations, or with whatever misunderstanding of the right question to answer, whether capricious, arbitrary or lacking a probative foundation or a rational connection with circumstances present, or fanciful, is within the lawful authority and jurisdiction of the decision-maker to reach."

NAAG of 2002 was approved by the Full Bench of the Federal Court.

21. In those circumstances I am obliged to find against the applicant although I do so with a heavy heart. She is, on the evidence, clearly a "woman at risk", a category of asylum-seeker to which the Australian government has recently committed itself. The applicant has the right to ask the Minister to reconsider the decision of the Tribunal and I would ask in the particular circumstances of this case that he give such a request sympathetic consideration.

22. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM


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